Wednesday, May 4, 2016

Library Open Carry Ban: Other Examples Show District Wrong

Is Nevada some stranger outlier when it comes to openly
carried firearms in public buildings? To those new to the issue, the Las Vegas
Clark County Library District’s illegal ban and the resulting fight to overturn
it would appear curious.

Members of the Nevada gun community have for over five years
repeatedly tried to politely engage the library district about their ban of
openly carried firearms and attempt to get it overturned. Each time, they were
turned away with the same, tired argument that has been trotted out to date.
Unfortunately, until 2015, most appeals were made to the same bureaucrats
promulgating their own policy. A completely illegal policy was written up and
never approved by the board of trustees—the only authority under the cited NRS
379.040 which can make rules—at least back to 2004.

In context of other examples, both locally and in other
states, it’s clear that it is the library district that is out of sync with
establish standards. We know that in Nevada, there simply isn’t any authority
for local gun regulations.

Legislation

If there was a problem with openly carried firearms in
public buildings, presumably the legislature would have corrected the error. As
I explained previously, the consensus in many of our neighboring states to the
north and east is that open carry, except for very limited cases, simply can’t
be regulated. During the 2015 legislative session, dubbed ‘the year of the
gun’, the Legislative Counsel Bureau gave
an opinion that open carry in public buildings (save for campuses,
daycares, and wherever the legislature is meeting) is legal.

"This office is aware
that some persons have argued that NRS 202.3673 prohibits the open carry of
firearms in a public building. However, that argument is not legally sound
because NRS 202.3673, by its plain language, regulates only the carrying of a
concealed firearm by a person who has a permit to carry a concealed
firearm. NRS 202.3673 simply does not apply to the open carry of
firearms in a public building.

"Because there is no
general statutory prohibition against the open carry of firearms in a public
building, it is the opinion of this office that the open carry of firearms is
not prohibited in a public building, unless otherwise prohibited by a specific
statute [...]."

The legislature neither passed nor proposed any bills
limiting openly carried firearms in public buildings. For most of Nevada’s
history, there was no law prohibiting firearms in public buildings, openly or
concealed. Indeed, for a time, licensed concealed carry was legal in public
buildings.

Other western states

Idaho, New Mexico, Utah, Washington, and Wyoming also
prohibit local authorities from making their own firearm regulations. In
Arizona and Montana, local public buildings banning weapons are at local
discretion with Arizona requiring secure storage or lockboxes. Interestingly,
Colorado law absolutely protects concealed carry in public buildings without security screening, which caused
the Denver Science Museum to
change its policy. Most states have strict preemption laws, so Nevada is
not at all unusual in this regard.

Henderson Library
District

The editor of this blog actually inadvertently changed how
Henderson Library District treats open carriers. I was confronted by a
volunteer who told me “Sir, this is a public building and we have signs
prohibiting weapons in the building.” When I tried to inform him about the law,
he held up his hand and walked off. He and a staff member whispered together while
pointing at me. Later, I sent an
open letter to the administrators who didn’t bother responding.

By sheer coincidence, while doing research months later, I
found out that at a board of trustees meeting the following month that the
issue was discussed and referred to their counsel, Brin Gibson, for his
opinion.

"Recently a gentleman
came in with an open carry weapon. It appeared his purpose was to challenge
someone to confront him. The admin team will meet with the district’s attorney,
Brin Gibson, and go through the applicable laws to decide what the district’s
stance should be. This may result in a policy update brought back to the Board.
There haven’t been any real problems; this was just something a little out of
the ordinary. Jim Frey asked how the situation was resolved. Angela Thornton
said staff asked him to leave. He said he didn’t have to, but did leave soon
after. He wanted to prove a point. Angela Thornton said in Oklahoma libraries
are considered government buildings where weapons are not allowed. If the Board
has any questions they should direct them to Angela Thornton. The meeting is
scheduled for October 1st. (9/18/2014
minutes)

"The admin team and
branch managers met with the library district’s attorney Brin Gibson about the
open carry issue. The law allows for a person to openly carry a firearm
[holstered] in the library, but it is against the law to carry a concealed
weapon [even with a permit] in the library. The library staff response will be
to call the police to ask any person open carrying about their intentions to
ensure they are someone who can carry legally, safely and responsibly in the
library. If a person is carrying an unholstered weapon, staff will pull the
fire alarm and call 911. Gayle Hornaday said the situation rarely occurs. On
the rare occasion a person has open carried in the library, he did so to make a
statement." (10/16/2015
minutes)

See how simply that was resolved? Why is the county district
so intransigent?

Clark County Parks

Clark County Parks long
enforced a county ordinance prohibiting guns in local parks. A
public-pressure challenge was mounted, resulting in an
opinion by Democrat Attorney General Cortez-Masto. She justified the ban
under incredibly tortured logic, essentially stating that since there was a
grandfather clause in the original state preemption bill to allow Clark
County’s handgun registration to continue, that the legislators really meant to
grandfather all local ordinances.
Despite several amendments to the original text over time, she still found it
to be valid.

The chief of police stated, prior to the law being preempted
and repealed, that he had no intentions to recommend that the county commissioners
repeal the ban. Again, government and police don’t want to give up power over
citizens. It’s unknown how many arrests for this ordinance were made. Within
days of preemption passing, Cdr. Michael acknowledged
the law was no longer enforceable, which he deserves credit for.

The shootings that have occurred over the years in county
parks made a joke out of this ban. No one is blaming state preemption (at least
not yet) for the violence with guns that have occurred in parks since the
repeal.

Public Utilities
Commission

Interestingly, the PUC
used very similar tactics to the library district’s vis-à-vis administrative shenanigans when faced with large crowds
and intense public rancor for their solar rate decision, all because one or two
people who were apparently only incidentally openly carrying in the crowd. They
claimed attorney-client privileged for emails to their counsel on the topic.

This appears to have been an unexpected crisis and based in
a real fear of the crowd. Though no actionable threats of violence were made,
the PUC was apparently so terrified of a crowd calling for a proverbial tarring
and feathering that they concocted an illegal policy. This shows that in a
crisis, government will use any power, legal or not, to suppress behavior it
fears.

Michigan

First, the too long;
didn’t read version: Persons legally possessing firearms (both open and
concealed carry is legal) were being hassled and prevented from doing so by the
Capitol Area Library District in Lansing. Lansing police got tired of being
called by the library staff and informed the library district that they will
not respond unless there is a court order in place. Consequently, the district
obtained a temporary restraining order (TRO). The restraining order enjoined
non-specific members of Michigan Open Carry, resulting in the arrest of a
member at a board meeting where he was also first served. The next day, all the
directors of Michigan Open Carry were served. The group filed suit, which
initially resulted in the library district winning the case, which was later
overturned on appeal (with a stern rebuke for that judge).

Although library districts were not specifically named in
Michigan’s preemption statute, the court found:

“Although district libraries are not expressly included
within the definition of a local unit of government for purposes of MCL
123.1102, because we are dealing with regulation by a quasimunicipal
governmental agency in an area that is regulated by the state, we are bound to
apply Michigan’s doctrine of field preemption in determining whether a district
library is free to regulate firearm possession.”

The suit found that while the Michigan library statute
authorizing library regulations could
pertain to firearms, it was overruled by the preemption statute. The preemption
statute applied, even though the library did not meet the given definition of a
local unit of government, because:

“Although district libraries have the authority to adopt
bylaws and regulations and do any other thing necessary for conducting the
district-library service, as stated earlier, this Court has held that a
district library is a quasi-municipal corporation, i.e., a governmental agency
authorized by constitution or statute to operate for and about the business of
the state.”

Additionally, when the letter of the statute is not met, the
following considerations must be taken in to consideration (People v. Llewellyn):

“First, where the state law expressly provides that the
state’s authority to regulate in a specified area of the law is to be
exclusive, there is no doubt that municipal regulation is pre-empted.

“Third, the pervasiveness of the state regulatory scheme may
support a finding of pre-emption. While the pervasiveness of the state
regulatory scheme is not generally sufficient by itself to infer pre-emption,
it is a factor which should be considered as evidence of pre-emption.”

“[...]the Legislature
stripped local units of government of all authority to regulate firearms by
ordinance or otherwise with respect to the areas enumerated in the statute,
except as particularly provided in other provisions of the act and unless
federal or state law provided otherwise. Unlike some other statutes, does not
use language to the effect that the act 'occupies the whole field of
regulation,' but rather expressly
removes the power of local units of government to regulate in the field. The effect is to occupy the field to the
exclusion of local units of government. In other words, although stated in
the negative, rather than the affirmative, the statutory language of
demonstrates that, in effect, state law
completely occupies the field of regulation [...]”

As to the question of whether a joint city-county library is
district is affected under regulation the court found:

“Excluding a district library from the field of regulation—simply
because it is established by two local units of government instead of
one—defies the purpose of the statute and would undoubtedly lead to patchwork
regulation.

“As established by MCL 123.1102 and Mich Coalition, all
public libraries that are owned by cities, villages, and townships are
currently preempted from regulating firearms. Thus, the issue is essentially
whether legislative history supports a finding that the state intended to
occupy the field of regulation to the exclusion of local units of government
except for district libraries, which are established by two or more local units
of government. [footnote]

“Thus, while the express language of the statute fails to
include a district library in its definition of local units of government, the
legislative history supports a finding that the purpose of the statute would
only be served by leaving it to the state to regulate firearm possession in all
buildings established by local units of government, including district
libraries.

“If the state prevents all public libraries established by a
city, village, township, or county from passing their own firearms regulations
but does not similarly prevent district libraries from doing so, it would
result in a ‘Balkanized patchwork of inconsistent local regulations’.

Now, Nevada’s case is a little bit different. The CADL
behaved in an intolerable fashion using a broad restraining order that bordered
on a bill of attainder for basically anyone openly carrying a firearm. The
LVCCLD has not stooped to the lows that CADL did. Also, Nevada’s preemption
statutes are extraordinarily clear that only the legislature has the power to
regulate firearms in addition to the
section regulating the powers of counties, cities, and towns. Our laws give no
question that LVCCLD has no powers to regulate firearms.

Seattle

The Seattle Public Library dropped its preempted ban of
firearms in November of 2013. This was the result of a few emails from a
concerned citizen, Dave Bowman. The city attorney told authorities that he
doubted their ban could survive a legal challenge. The fight with the Seattle
library had begun in 2007, but only came to a head years later, in light of Chan v. Seattle, which found that
Seattle's ban on firearms in public parks was illegal.

A library employee, reacting to the issue, made the very
argument why citizens should not be disarmed at libraries (source
KUOW):

“We MUST strive to keep guns out of our very trusted, and
very public space. Because of our public nature, we are prime targets for
random violence. No amount of ‘training’ will be able to keep staff and patrons
safe, if anyone can come in with a hidden gun [sic].”

An anti-gun activist, Ralph Fascitelli, said:

"'Can I fault the library for not fighting back?
Absolutely not,' Fascitelli said. 'It’s black and white. We would have been all
over that if there had been wiggle room, but they have no choice. Why fight a
battle you know you’re going to lose?'”

Florida

Florida has the toughest preemption law of all the states.
If Nevada’s law had the punch Florida’s law does, I seriously doubt the library
district would be pursuing their current course of action. Let’s take a look.

(1)(b) It is further the intent of
this section to deter and prevent the
violation of this section and the violation of rights protected under the
constitution and laws of this state related to firearms, ammunition, or
components thereof, by the abuse of official
authority that occurs when enactments
are passed in violation of state law or under color of local or state authority.

(3)(a) Any person, county, agency,
municipality, district, or other entity
that violates the Legislature’s occupation of the whole field of regulation
of firearms and ammunition, as declared in subsection (1), by enacting or
causing to be enforced any local ordinance or administrative rule or regulation
impinging upon such exclusive occupation of the field shall be liable as set forth
herein.

(b) If any county, city, town, or other local
government violates this section, the court shall declare the improper
ordinance, regulation, or rule invalid and issue a permanent injunction against
the local government prohibiting it from enforcing such ordinance, regulation,
or rule. It is no defense that in
enacting the ordinance, regulation, or rule the local government was acting in
good faith or upon advice of counsel.

(c) If the court determines that a violation was knowing and willful, the
court shall assess a civil fine of up to
$5,000against the elected or
appointed local government official or officials or administrative agency head
under whose jurisdiction the violation occurred.

(d) Except as required by applicable law, public funds may not be used to defend or
reimburse the unlawful conduct of any person found to have knowingly and
willfully violated this section.

(e) A knowing and willful violation
of any provision of this section by a person acting in an official capacity for
any entity enacting or causing to be enforced a local ordinance or
administrative rule or regulation prohibited under paragraph (a) or otherwise
under color of law shall be cause for
termination of employment or contract or removal from office by the
Governor.

(f) A person or an organization
whose membership is adversely affected by any ordinance, regulation, measure,
directive, rule, enactment, order, or policy promulgated or caused to be
enforced in violation of this section may file suit against any county, agency,
municipality, district, or other entity in any court of this state having
jurisdiction over any defendant to the suit for declaratory and injunctive
relief and for actual damages, as limited herein, caused by the violation. A
court shall award the prevailing plaintiff in any such suit:

1. Reasonable attorney’s fees and
costs in accordance with the laws of this state, including a contingency fee
multiplier, as authorized by law; and

2. The actual damages incurred, but
not more than $100,000.

It’s pretty clear that the library district is fully aware
it will lose in court, however, they don’t care. Our preemption law only risks
taxpayer dollars, which has never been a concern of any government official.
Now if the administrators were facing losing their job and a substantial chunk
of change, you can bet the policy would have been changed in a heartbeat. Instead,
they will abuse the legal system to have citizens illegally arrested and waste
tax money defending their blatantly illegal policy. Florida got this one right.

Conclusion

The library district is waging a futile battle. State law
and case precedence are against them. Government doesn’t want to relinquish
power. As my own experience and Mrs. Flores’s experience has shown that
libraries don’t want a discourse. Because of their anti-gun ideology, the
district’s members are so hostile to beliefs that conflict with their own that
they cannot respect the law. It is truly baffling to see that they would take
this issue so far, admitting all the while that they will lose. This incident
was of their making. It was the administrator’s and the trustee’s decision to
escalate this issue and to continually trample upon a civil right they didn’t
agree with.